State Behavior and the International Criminal Court

Between Cooperation and Resistance

Franziska Boehme

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000593389
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book analyzes patterns and causes of state cooperation with the International Criminal Court. The work focuses on several African cases, including those against leading state officials, to dive into current debates about compliance with international law and resistance to international courts. The book, which draws on interview data collected in The Hague, Kenya, and South Africa, reveals the diversity of state behaviors ranging from full compliance and diplomatic support to partial compliance to resistance and exit. This redirects the widespread narrative about African resistance against the ICC to include evidence of continued Court support. It is argued that the degree of cooperation the Court receives is affected by a government's perceived costs and benefits of executing an ICC request: a cooperation request is considered high cost or low cost depending on the suspect's position, the type of action requested, and the government's domestic and regional policy objectives. In response, the Court has been careful not to alienate states further, thus highlighting that the Court is both above and below the state: having the power to charge individuals including state officials, but relying on governments—sometimes those from which suspects come—to take action on behalf of the Court against the same suspects. The book will be of interest to academics, researchers, and policymakers working in the areas of international law, human rights, international criminal justice, and international relations.

1 Introduction

DOI: 10.4324/9781003181002-1

On November 24, 2013, authorities of the Democratic Republic of the Congo (DRC) arrested Congolese legislator Fidèle Babala Wandu. Babala Wandu had been charged by the International Criminal Court (ICC, or the Court) for coaching and bribing witnesses in an ICC trial. The Congolese authorities acted on the ICC’s arrest warrant and detained him. In contrast, north of the DRC, (now former) Sudanese President Omar Al Bashir has never set foot inside a The Hague courtroom despite two arrest warrants for mass atrocities. He spent years traveling the globe, including to many ICC member states—or states parties in the parlance of the Court—that have failed to follow up on their legal obligation to arrest him. Thus, while legally obligatory, the Court’s member states sometimes have contradictory interests that can make cooperation difficult.

These two episodes—one example of compliance and one of non-compliance—illustrate the importance of state cooperation for the functioning of the Court. According to the Preamble of the Court’s founding treaty, the Rome Statute, the Court’s goal is to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”¹ To fully grasp the ICC’s potential to deliver on these goals, we must first better understand state cooperation. As the Court lacks its own police force and is only complementary to national justice systems, it relies on other actors, most importantly state authorities, to enforce its decisions. Every time the ICC seeks an arrest or wants access to information and witnesses, it is up to national authorities to execute these court requests. State cooperation is thus integral to the functioning of the ICC.

1 Rome Statute of the International Criminal Court, Preamble.

Since the Court’s establishment in 1998, it has received a lot of criticism. Critics posit that the high hopes that accompanied the Court’s creation—that it would deter mass atrocities and end impunity—have failed to materialize. They point to the limited number of completed trials and convictions. Moreover, the ICC has encountered significant backlash from several African states that have accused it of being biased against the continent because its only active investigations focus on African defendants. For many observers, this record paints the picture of an ineffective and biased institution that has achieved little in 20 years of operation.

This book does not deny that the Court bears responsibility for its litigation mistakes, slow trials, and political backlash. Research has highlighted the political underpinnings of ICC decision-making.² However, this book takes a different route and takes the role of states’ support for and resistance to the Court seriously.³ While much scholarship has studied the creation of the Court and its impact on justice and peace,⁴ compliance and cooperation with the ICC have only recently been examined more closely. This research has highlighted that it is often not the Court that breeds its own bad record but the states in charge of enforcing arrest warrants and responsible for complying with ICC decisions. Critics’ arguments about the Court’s ineffectiveness are thus intimately tied to the lack of state cooperation in vital areas such as arrests and surrender.

2 For example, David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford: Oxford University Press, 2014); Alana Tiemessen, “The International Criminal Court and the Politics of Prosecutions,” The International Journal of Human Rights 18, no. 4–5 (2014): 444–461. 3 Bosco, Rough Justice; Courtney Hillebrecht and Scott Straus, “Who Pursues the Perpetrators? State Cooperation with the ICC,” Human Rights Quarterly 39, no. 1 (2017): 162–188, https://doi.org/10.1353/hrq.2017.0006. 4 For example, Benjamin N. Schiff, Building the International Criminal Court (Cambridge: Cambridge University Press, 2008); Nicole Deitelhoff, “The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case,” International Organization 63, no. 1 (2009): 33–65; Beth A. Simmons and Allison Danner, “Credible Commitments and the International Criminal Court,” International Organization 64, no. 2 (2010): 225–256; Terence Chapman and Stephen Chaudoin, “Ratification Patterns and the International Criminal Court,” International Studies Quarterly 57, no. 2 (2013): 400–409.

This book addresses state cooperation by focusing on three interrelated questions: (1) What behaviors have the Court’s African member states adopted toward the Court? (2) How can we explain these behaviors? And (3) How has the Court responded to these state behaviors? I focus on the engagement between the Court and its African states parties because all past and ongoing active cases involve defendants from African nations, so it is primarily their cooperation on which the Court has relied.

By providing answers to the three research questions above, this book makes several contributions. The chapters that follow add complexity and nuance to several key concepts in the realm of international court scholarship. For instance, the book provides a typology of state behaviors toward the ICC that combines insights from scholarship on both compliance and resistance. The typology has the potential to be applied to other international courts and organizations. Second, I specify the concept of regime costs by identifying two conditions that make a government’s cooperation with the Court more or less likely. Moreover, the book reveals the extent to which some African states have supported the ICC—an insight that is often missed in the broader ‘Africa against the ICC’ narrative. I also contribute to emerging research on the resilience of international courts in the face of crisis. I preview these main arguments below and expand on them in Chapter 2.

The ICC and State Cooperation: A Legal Institution in a Political Context

The Rome Statute and State Cooperation

The treaty establishing the ICC, the Rome Statute of the International Criminal Court, was adopted in Rome on July 17, 1998, by 120 states. It entered into force on July 1, 2002, after 60 states had ratified the treaty. The 63-page document sets out the Court’s institutional design, its jurisdiction, crimes covered, and funding, and contains detailed provisions pertaining to state cooperation and the distinct obligations of states parties and non-member states.

Pursuant to the Statute’s Article 86, “[s]tates Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”⁵ States can assist the Court by complying with so-called court requests. These are official letters in which the Court asks a state’s authorities to execute certain tasks. This includes identifying and locating witnesses, gathering evidence, questioning persons, examining sites and exhuming graves, conducting searches and seizures, or protecting victims and witnesses and preserving evidence, as well as identifying, tracing, and freezing assets and instruments of crime, such as weapons or vehicles. In addition to this general cooperation obligation,

5 Rome Statute of the International Criminal Court, Article 86.

Part 9 of the Statute conceives international cooperation as a mechanism by which the ICC can plug into the entire law enforcement machinery of the requested state—benefiting from the same policing powers and evidence gathering capabilities as its domestic counterparts. In this way, when the ICC channels a request to a state which is bound to cooperate, that state must direct its competent agencies to execute the request as if it emanated from its own courts.⁶

6 Rod Rastan, “Can the ICC Function without State Compliance?” in The Elgar Companion to the International Criminal Court, eds. Margaret M. deGuzman and Valerie Oosterveld, 149 (Cheltenham: Edward Elgar, 2020).

The Rome Statute provides for individual criminal accountability regardless of the defendant’s official status. The Rome Statute’s Article 27 makes a suspect’s official position irrelevant for prosecution:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.⁷ 7 Rome Statute of the International Criminal Court, Article 27.

Article 27 has led to controversy because of a perceived discrepancy between it and the customary international legal norm regarding immunity of sitting heads of state. I expand on these legal issues below and in Chapter 4.

The ICC has jurisdiction over four international crimes: crimes against humanity, war crimes, genocide, and aggression (with exceptions). The Rome Statute deems these crimes “the most serious crimes of concern to the international community as a whole.”⁸ Articles 6 through 8 specify the three core crimes. In addition, countries wanted to include aggression as a crime but failed to reach a consensus on its definition in 1998. It was only in 2010 during the Review Conference in Kampala, Uganda, when states parties adopted amendments to the Statute defining the crime of aggression and decided on the conditions for the exercise of jurisdiction over aggression, which became effective in July 2017.

8 Rome Statute of the International Criminal Court, Article 5(1).

The ICC in an Environment of Political Actors

The chapters that follow detail the interactions between the ICC and its African member states, but there are other relevant actors at the global and state level that influence these interactions: the United Nations Security Council (UNSC), the African Union (AU) as well as non-governmental organizations (NGOs) and domestic courts. These actors all possess agency, meaning “the capacity to act in international politics.”⁹ They can influence outcomes and have a role to play in fostering cooperative or resistant behavior between states and the ICC.

9 Benjamin Braun, Sebastian Schindler, and Tobias Wille, “Rethinking Agency in International Relations: Performativity, Performances and Actor-Networks,” Journal of International Relations and Development 22 (2019): 799, https://doi.org/10.1057/s41268-018-0147-z.

At the international level, the ICC represents the international community’s effort to bring suspects of mass atrocities to justice. The Court’s Office of the Prosecutor (OTP) decides which ‘situations’ to investigate, whom to charge with crimes, and how to pursue trials. The Court’s first investigations arose from several African member states referring situations on their own territories to the Court, so-called self-referrals. In 2009, the OTP issued charges against a sitting head of state for the first time, (then sitting) Sudanese President Al Bashir.

The second most important set of actors are the Court’s member states, specifically their sitting governments who decide to what extent to cooperate with the ICC. Legally, they are obligated to cooperate fully with the ICC in its investigations. African states played a pivotal role in the Court’s creation and design, and they joined the Court eagerly after its establishment. Several African states were involved with the Like-Minded Group that pushed for a stronger role for an independent prosecutor and a limited role for the UN Security Council.¹⁰ By late 2000, two years after the Rome Statute’s adoption, more than 30 African states had signed the treaty. Once the Court was operational, Uganda, the DRC, and the Central African Republic (CAR) also referred their own conflict situations to the Court, handing the ICC its first workload of possible cases and crimes to investigate.

10 Schiff, Building the International Criminal Court.

These events suggest African states’ commitment to and enthusiasm for the Court in its early years. While much scholarship has cast these early years as a true commitment by African states to the ICC and its individual criminal accountability norm, Brett and Engo Gissel ...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Dedication
• Contents
• List of Figures
• List of Tables
• Acknowledgments
• Abbreviations
• 1 Introduction
• 2 Between Cooperation and Resistance: The ICC and Its Member States
• 3 Consistent and Partial Compliance in ICC Cases against Rebel Leaders
• 4 Non-Compliance with Arrest Warrants in the ICC’s Al Bashir Case
• 5 Kenya’s Pushback against the ICC
• 6 Exit Threats and Exits from the ICC
• 7 Conclusion
• Bibliography
• Index